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United States ex rel. Young v. Suburban Home Physicians

United States District Court, N.D. Illinois, Eastern Division

May 15, 2017

UNITED STATES OF AMERICA ex rel. YOUNG, et al., Plaintiffs,
v.
SUBURBAN HOME PHYSICIANS d/b/a DOCTOR AT HOME, et al . Defendants,

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge.

         This qui tam action was initiated by Albert Young, [1] Teresa Dedina, Vianka Calderon, and D'Ander Hooks-Czapansky (collectively, “Relators”) on behalf of the United States against dozens of different individuals and corporate entities. [98] at 1-66. Some (though not all) of these defendants have moved to dismiss the claims pending against them. See [105], [117], [132], [135], [138], [143], [146], [149], [163]. The pending motions to dismiss are granted, as discussed more fully below.

         I. Background

         Relators are all former employees of Defendant Suburban Home Physicians, Inc. (“Suburban”). [98] at 2. Suburban was owned and operated by Defendants Jerry Gumila (“Jerry”) and Diana Jocelyn Gumila (“Diana”), and did business as “Doctors at Home.” Id. at 2-3.

         Relators allege that the presently-moving defendants, through their interactions with Suburban, Jerry, and Diana, violated both the False Claims Act (“FCA”), 18 U.S.C. § 3729 et seq., and the Anti-Kickback Statute (“AKS”), 42 U.S.C. § 1320a-7b. More specifically, Relators allege that Suburban and the Gumilas coordinated with the various co-defendants to falsify Medicare forms, through backdating and upcoding, in exchange for reciprocal patient referrals. Diana, for her part, was previously convicted of 21 counts of health care fraud in connection with her work at Suburban. See United States v. Gumila, No. 14-cr-411-1, Dkt. 74 (N.D. Ill. April 14, 2016).

         Given the number of parties and claims at issue, the allegations against each presently-moving defendant are broken down below.[2]

         A. The Patel Defendants

         Relators allege that defendants Naimish Patel (“Naimish”) and Prashant Patel (“Prashant”) “put up the funds to bankroll” Suburban and “received part of the illicit profits.” Id. at 20. This allegation is grounded in Diana's objection to her pre-sentence investigation report and sentencing memorandum. See United States v. Gumila, No. 14-cr-411-1, Dkt. 89 at *9 (N.D. Ill. July 11, 2016, 2016) (“One of the owners of Doctor at Home on paper was Jocelyn Gumila's husband, Jerry, although he received a much smaller share of the billings, since, as he was informed by the other partners, Naimish Patel and Prashant Patel, they alone had put up the funds to bankroll the company.”).

         Relators also make various allegations against a collective group of “Doctor at Home Defendants, ” which is broadly defined in the Amended Complaint to include “Jerry, Jocelyn, Naimish, Prashant and Suburban Home Physicians.” [98] at 4. The allegations against the collective Doctor at Home Defendants include:

• A claim that the Doctor at Home Defendants “entered into an oral agreement and conspiracy” with certain other defendants to backdate and falsify a Form 485 regarding patient ES, [98] at 9;
• An allegation that the Doctor at Home Defendants certified a falsified Form 485 regarding patient VG, id. at 11;
• A claim that the Doctor at Home Defendants presented fraudulent claims regarding the treatment of patient VN in August of 2013, id. at 12-14;
• An allegation that the Doctor at Home Defendants presented fraudulent claims regarding the treatment of patient VN in September of 2013, id. at 14-15; and
• A claim that the Doctor at Home Defendants presented a false claim for payment to Medicare regarding the treatment of patient SM, id. at 14-15.

         B. Govvas Defendants

         Defendants Valentine Akpata (“Valentine”) and Gloria Akpata (“Gloria”) are the two principals of Defendant Govvas Health Care Services, Inc. (collectively, the “Govvas Defendants”). [98] at 3. Relators allege that the Govvas Defendants:

• Received referrals for patients DR and AC from the Doctor at Home Defendants on June 7, 2013, id. at 17;
• Received referrals for patients JH, BJ and ET from the Doctor at Home Defendants on July 30, 2013, id;
• Received a referral for patient KW from the Doctor at Home Defendants on August 6, 2013, id.; and
• Materially “solicited or received patients from Serenity Marketing and Sundae Williams (collectively ‘Serenity') in exchange for a fee paid to Serenity, ” this fee “constituted remuneration for Serenity referring patients” to the Govvas Defendants, and the Govvas Defendants were paid by Medicare for claims related to these home health services, id. at 31.

         C. Comet/Miranda Defendants

         Relators claim that Defendants Christopher Theophilius a/k/a Christopher Nwakah (“Christopher”), Jessica Nwakah (“Jessica”), and Vivian Nwakah (“Vivian”) “control” both Defendant Comet Home Healthcare, Inc. (“Comet”) and Defendant Miranda Home Healthcare, Inc. (“Miranda”). Id. at 5. Throughout the Amended Complaint, Comet, Miranda, Christopher, Jessica and Vivian are “sometimes” referred to as the “Miranda Defendants” or the “Comet/Miranda Defendants.” Id.[3]

         Relators additionally claim that:

• The Doctor at Home Defendants referred nineteen homebound patients (RG, JR, AR, ER, DT, EB, MC, RD, DH, JM, RM, MM, MM, RM, MR, MS, ET, VT and EV) to the Comet/Miranda Defendants between October 26, 2011 and December 22, 2012, id. at 17;
• The Comet/Miranda Defendants referred two of their own patients (RK and KL) to the Doctor at Home Defendants on April 13, 2012 and December 9, 2012, respectively, id.;
• From April 2013 through June 2013, the Miranda Defendants provided skilled-nursing services to patient JR without the requisite Form 485, id. at 27;
• The Miranda Defendants then “drafted and sent a backdated Form 485” to the Doctor at Home Defendants “to reflect that patient JR was certified for Home Health Services from 4/13/13 to 6/11/13, ” id. at 28; and
• The Doctor at Home Defendants then “affixed a physician signature to the backdated Form 485 for patient JR . . . without having seen the patient during the requisite 90/30 day period, ” and then returned the signed Form 485 to the Miranda Defendants, id.

         D. A&Z Defendants

         Defendants Felix Omorogbe (“Felix”) and Patricia Omorogbe (“Patricia”) are the two principals of Defendant A&Z Home Health Care, Inc. (collectively, the “A&Z Defendants”). [98] at 3. Relators allege that:

• On July 13, 2013, the A&Z Defendants received referrals for patients GH, RH, ES, BP and ED from the Doctor at Home Defendants; id. at 17;
• From November of 2013 through January of 2014, the A&Z Defendants rendered skilled-nursing services for patient EA, even though patient EA was not confined to the home and those skilled-nursing services were not medically necessary, id. at 22;
• The A&Z Defendants knowingly presented to Medicare a claim for payment or approval for the skilled-nursing services they had rendered to patient EA, which was paid in the amount of $1, 975.09, id. at 23;
• The A&Z Defendants' claim to Medicare related to patient EA was supported by a falsified Form 485 generated by the Doctor at Home Defendants, id.;
• From May of 2014 through July of 2014, the A&Z Defendants rendered skilled-nursing services for patient WC, even though patient WC was not confined to the home and those skilled-nursing services were not medically necessary, id. at 24;
• The A&Z Defendants knowingly presented to Medicare a claim for payment or approval for the skilled-nursing services they had rendered to patient WC, which was paid ...

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